Cargle v. Mullin

F I L E D
United States Court of Appeals
Tenth Circuit
PUBLISH
JAN 27 2003
UNITED STATES COURT OF APPEALS
PATRICK FISHER
Clerk
TENTH CIRCUIT

MARCUS L. CARGLE,

Petitioner - Appellant-
Cross-Appellee,

v. Nos. 01-6027 & 01-6041

MIKE MULLIN, Warden,
Oklahoma State Penitentiary,

Respondent - Appellee-
Cross-Appellant.

APPEAL FROM THE UNITED STATES DISTRICT COURT
FOR THE WESTERN DISTRICT OF OKLAHOMA
(D.C. No. CIV-97-1870-A)

Jack Fisher, Edmond, Oklahoma, Attorney for Petitioner-Appellant.

Robert L. Whittaker, Assistant Attorney General, Criminal Division, (W.A. Drew
Edmondson, Attorney General of Oklahoma with him on the briefs), Oklahoma
City, Oklahoma, for Respondent-Appellee.

Before SEYMOUR , EBEL , and HENRY , Circuit Judges.

EBEL , Circuit Judge.
 Petitioner Marcus Cargle was convicted in Oklahoma of first degree murder

and sentenced to death in connection with the shooting of Richard and Sharon

Paisley during a drug transaction at their home. Present with petitioner during the

fatal incident were Christopher Todd Jackson and Christopher Todd Williams.

Apart from the critical question of who shot Sharon, most of the material facts

surrounding the homicides were not in dispute at trial.

Petitioner was nineteen years of age when the events took place. He and

several acquaintances, including Jackson, also nineteen, and Williams,

twenty-four, were socializing at his uncle’s house in the late afternoon. Earlier in

the day, petitioner had purchased $100 worth of marijuana from the Paisleys.

Dissatisfied with the marijuana, petitioner and his two friends left his uncle’s

house to recover the money he had paid to the Paisleys. Their arrival at the

Paisley home did not initially spark any confrontation; Sharon served them beer

and popcorn while Richard left to get the cash from a neighbor. Richard returned

and gave petitioner the $100, and petitioner and Jackson prepared to leave.

Just then, however, Williams returned from the bathroom brandishing a

firearm and, without warning or provocation, shot Richard in the chest. Petitioner

and Jackson did not move. Williams shot Richard again, this time in the head,

and Richard fell to the floor. According to Jackson, at this point petitioner

exclaimed “damn,” ran over to where Sharon had crawled from a couch to the

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floor, and shot her in the head. His gun jammed and, while he fumbled with it,

Williams shot Richard for a third and last time. Then, according to Jackson,

petitioner shot Sharon once more. The three men tried to wipe their fingerprints

from the scene, Williams took a television and VCR, and they left. While they

were driving away, Williams threatened petitioner and Jackson that whoever said

anything would have to die too.

Petitioner was brought to trial first. 1
Largely on the basis of Jackson’s

immunized testimony, he was convicted of murdering Sharon and aiding and

abetting in Richard’s murder. The death penalty was imposed on both counts.

The Oklahoma Court of Criminal Appeals (OCCA) affirmed the convictions and

sentences on direct appeal, see Cargle v. State , 909 P.2d 806 (Okla. Crim. App.

1995), and subsequently denied post-conviction relief almost entirely on waiver

grounds, see Cargle v. State , 947 P.2d 584 (Okla. Crim. App. 1997). Petitioner

timely filed a petition for a writ of habeas corpus under 28 U.S.C. § 2254.

Of the many claims asserted in the petition, only the following are before

us for consideration on appeal: (1) ineffective assistance of counsel in the guilt

and penalty phases of trial; (2) prosecutorial misconduct in the guilt and penalty

phases; (3) admission of improper victim impact testimony in the penalty phase;

1
Williams was later tried, convicted of first degree murder, and, despite his
primary active role in the crime, sentenced only to life imprisonment without the
possibility of parole.

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(4) insufficient evidence as to the murder of Richard Paisley; (5) improper

excusal of veniremen because of reservations expressed about the death penalty;

(6) facial and as-applied challenges to the aggravating circumstances invoked by

the prosecution to support the death penalty; (7) failure to disclose exculpatory

evidence under Brady v. Maryland , 373 U.S. 83 (1963); and (8) cumulative error.

The district court rejected petitioner’s challenges to the guilt phase of trial

but concluded that he was entitled to sentencing relief on the bases of ineffective

assistance of counsel, improper victim impact testimony, and the cumulative

effect of these two errors during the penalty phase of trial. Accordingly, the

district court granted petitioner’s request for relief from his death sentences,

allowing the State 180 days to conduct a new sentencing hearing. Both petitioner

and the State have appealed from the district court’s rulings and judgment. As

explained below, we agree with the district court that petitioner’s death sentences

cannot stand. However, we hold that constitutional error undermines petitioner’s

convictions as well, and thus his present convictions cannot stand either.

In Part I of this opinion, we address five procedural and threshold legal

issues of general application. We must resolve these issues in order properly to

analyze the merits of the parties’ arguments.

First, we address the district court’s application of our decision in Walker

v. Attorney General , 167 F.3d 1339 (10 th Cir. 1999). In Walker , we considered

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the effect of the 1995 amendments to Oklahoma statutes governing capital

post-conviction proceedings and refused to apply those amendments retroactively

for purposes of federal application of procedural bar. Here, we conclude that the

district court read the Walker procedural-bar exception too broadly. With regard

to many of petitioner’s claims, we conclude that the Walker exception is

inapplicable and we must apply the traditional federal standards for determining

whether a procedural default is excused. See infra Part I A.

Second, we address the standard applied by the OCCA for assessing claims

of ineffective assistance of appellate counsel. That standard is relevant because

petitioner has argued that the omission of certain issues from his direct appeal

resulted from ineffective assistance of his appellate counsel (which should excuse

his procedural default) and because the OCCA rejected this argument on the

merits. We conclude that the OCCA applied an incorrect standard and, as a

result, we do not defer to its disposition. See infra Part I B.

Third, we consider the effect of the OCCA’s review of some of petitioner’s

constitutional claims under a state plain-error standard. We conclude that some

of the state plain-error rulings constitute merits determinations under federal law

while others reflect reliance on independent state grounds for disposition which

warrant application of federal procedural-bar principles. We also clarify the

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circumstances in which we defer under AEDPA to state court determinations of

federal issues on plain-error review. See infra Part I C.

Fourth, we address important issues regarding petitioner’s claims of

cumulative error. We conclude that prejudice may be cumulated among different

kinds of constitutional error, such as ineffective assistance of counsel and

prosecutorial misconduct. We further conclude that prejudice may be cumulated

among such claims when those claims have been rejected individually for failure

to satisfy a prejudice component incorporated in the substantive standard

governing their constitutional assessment. Finally, we conclude that prejudice

from guilt-phase error may be cumulated with prejudice from penalty-phase error.

See infra Part I D and E.

Fifth, we address whether it was proper under 28 U.S.C. § 2254(e)(2) for

the district court to consider evidence that was not first presented to the state

courts. As to testimonial evidence, we note that the State did not challenge the

district court’s decision to hold an evidentiary hearing. As to new documentary

evidence, we conclude that petitioner attempted to develop this material in the

state court proceedings and, as a result, this evidence should not be barred on the

ground that he failed to develop the factual basis of his claim in state court. See

infra Part I F.

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 With these threshold matters resolved, we turn to the merits in Part II. We

conclude that petitioner received ineffective assistance of counsel at the guilt and

penalty phases of trial, that the prosecution engaged in prejudicial misconduct at

both phases of trial, and that the State relied on improper victim impact evidence

to support the death penalty. We hold that petitioner is entitled to relief from his

capital convictions based, individually, on ineffective assistance of counsel and,

cumulatively, on the combined impact of this error and prosecutorial misconduct.

We also hold that petitioner is entitled to relief from his death sentences based,

individually, on ineffective assistance of counsel and, cumulatively, on the

combined impact of all three errors cited immediately above. However, we reject

in Part III petitioner’s claims that there was insufficient evidence to support his

convictions and death sentences. Hence, we recognize that the State may retry

and resentence petitioner within a reasonable time without constraint by double

jeopardy concerns. These rulings render it unnecessary to address petitioner’s

other claims.

I. PROCEDURAL AND THRESHOLD LEGAL RULINGS

These appeals raise numerous issues, but our overall approach is framed by

several procedural and threshold legal rulings of general application.

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A. LIMITED SCOPE OF WALKER EXCEPTION TO PROCEDURAL BAR

The district court reached the merits of many claims defaulted by petitioner

in state court, based on an overly broad application of the exception to state

procedural bar recognized in Walker v. Attorney General , 167 F.3d 1339. In

Walker , we refused to bar a claim that was defaulted under Oklahoma’s newly

amended (in 1995) post-conviction scheme, when the procedural default occurred

before the amended statute was enacted. We noted that the 1995 amendments

made it harder in the state courts to raise new post-conviction claims based on

intervening changes in law, and we declined to give federal effect to a state

default of a claim that would not have been defaulted before the amendments. 2

We reasoned: “A defendant . . . should not be deprived of a claim for failing to

comply with a rule [i.e., the more stringent duty to anticipate changes in law and

urge currently foreclosed issues or face later waiver consequences] that only

comes into being after the time for compliance has passed.” Walker , 167 F.3d at

1345; see Mitchell , 262 F.3d at 1047.

2
The relevant change in law in Walker was the invalidation of Oklahoma’s
clear-and-convincing evidentiary standard for trial competency in Cooper v.
Oklahoma , 517 U.S. 348 (1996). Before 1995, the OCCA would have deemed
Cooper a change in law sufficient to excuse a default. Mitchell v. Gibson , 262
F.3d 1036, 1047 (10 th Cir. 2001). In Walker , however, the OCCA applied the
1995 amendments to bar a Cooper claim for being defaulted in proceedings that
predated the amendments.

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 However, if claims omitted on direct state appeal would have been barred

on state post-conviction anyway, even under Oklahoma’s pre-1995 law (for

example, if they rested on authority established at the time of direct appeal), it

would not make sense to isolate the new 1995 standard as the operative cause of

the default. 3
Thus, we have not applied Walker to excuse petitioner’s default in

failing to raise claims in his direct appeal that were at the time of the default

clearly established. Here, the Walker exception to procedural default is

inapplicable to many of petitioner’s claims, including ineffective assistance of

counsel, prosecutorial misconduct, and State suppression of evidence. We will

consider whether those claims should be resolved on the merits notwithstanding

state procedural default, under the traditional federal standards for evaluating

when state procedural default should be excused.

B. OCCA’s DEPARTURE FROM FEDERAL STANDARD FOR
ASSESSING INEFFECTIVE ASSISTANCE OF APPELLATE
COUNSEL

With respect to several issues omitted from his direct appeal, petitioner

argues ineffective assistance of appellate counsel to excuse his default. See

3
The district court improperly invoked Walker for a categorical ruling that
“any claim that Petitioner raised within his post-conviction petition is properly
before this Court for review on the merits, even if the OCCA held that the claim
had been defaulted or waived.”

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generally Murray v. Carrier , 477 U.S. 478 (1986). Because the OCCA denied

petitioner’s claims of ineffective assistance of appellate counsel on the merits,

ordinarily our review would be limited to determining whether the petitioner can

show that the state court’s disposition is “contrary to, or involved an unreasonable

application of, clearly established Federal law, as determined by the Supreme

Court of the United States.” 28 U.S.C. § 2254(d)(1); see, e.g. , Ellis v. Hargett ,

302 F.3d 1182, 1187 (10 th Cir. 2002). However, this deferential standard of

review does not apply if the state court employed the wrong legal standard in

deciding the merits of the federal issue. See, e.g. , Revilla v. Gibson , 283 F.3d

1203, 1220 n.14 (10 th Cir.), cert. denied , (No. 02-6372) 2002 WL 31189684 (U.S.

Nov. 12, 2002). The OCCA applied the wrong standard here.

The proper standard for assessing a claim of ineffectiveness of appellate

counsel is that set forth in Strickland v. Washington , 466 U.S. 668, 104 S. Ct.

2052, 80 L.Ed.2d 674 (1984). Smith v. Robbins , 528 U.S. 259, 285 (2000)

(following Smith v. Murray , 477 U.S. 527, 535-36 (1986)). Thus, the petitioner

must show both (1) constitutionally deficient performance, by demonstrating that

his appellate counsel’s conduct was objectively unreasonable, and (2) resulting

prejudice, by demonstrating a reasonable probability that, but for counsel’s

unprofessional error(s), the result of the proceeding–in this case the appeal–would

have been different. Id. at 285 (applying Strickland ).

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 A claim of appellate ineffectiveness can be based on counsel’s failure to

raise a particular issue on appeal, although it is difficult to show deficient

performance under those circumstances because counsel “need not (and should

not) raise every nonfrivolous claim, but rather may select from among them in

order to maximize the likelihood of success on appeal.” Id. at 288 (following

Jones v. Barnes , 463 U.S. 745 (1983)). Thus, in analyzing an appellate

ineffectiveness claim based upon the failure to raise an issue on appeal, “we look

to the merits of the omitted issue,” Neill v. Gibson , 278 F.3d 1044, 1057 (10 th

Cir. 2001) (quotation omitted), cert. denied , 123 S. Ct. 145 (2002), generally in

relation to the other arguments counsel did pursue. If the omitted issue is so

plainly meritorious that it would have been unreasonable to winnow it out even

from an otherwise strong appeal, its omission may directly establish deficient

performance; if the omitted issue has merit but is not so compelling, the case for

deficient performance is more complicated, requiring an assessment of the issue

relative to the rest of the appeal, and deferential consideration must be given to

any professional judgment involved in its omission; of course, if the issue is

meritless, its omission will not constitute deficient performance. 4
See, e.g. ,

4
This court recently rejected the idea that omission of a “dead bang winner”
issue is a necessary condition for prevailing on an appellate ineffectiveness claim.
Neill , 278 F.3d at 1057 n.5. Neill ’s holding does not undermine the principle that
omission of a clearly meritorious issue can be a sufficient basis for such a claim.

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Smith , 528 U.S. at 288; Banks v. Reynolds , 54 F.3d 1508, 1515-16 (10 th Cir.

1995); Mayo v. Henderson , 13 F.3d 528, 533 (2d Cir. 1994).

The OCCA, however, utilized a different analysis by applying a three-step

approach for capital cases that it had drawn from Okla. Stat. tit. 22, § 1089, in

Walker v. State , 933 P.2d 327, 333-35 (Okla. Crim. App. 1997).

Under this analysis, (1) the threshold inquiry is whether appellate
counsel actually committed the act which gave rise to the ineffective
assistance allegation. If a petitioner establishes appellate counsel
actually did the thing supporting the allegation of ineffectiveness,
this Court then (2) determines whether the performance was deficient
under the first of the two-pronged test in Strickland v. Washington ,
466 U.S. 668, 687, 104 S.Ct. 2052, 2064, 80 L.Ed.2d 674, 693
(1984). If this burden is met, (3) this Court then considers the
mishandled substantive claim, asking whether the deficient
performance supports a conclusion either that the outcome of the trial
would have been different but for the errors or that the defendant is
factually innocent.

Cargle , 947 P.2d at 587-88 (quotation omitted). These three steps each perform

very distinct functions. Step one is merely a fact finding step. Step two is where

the court analyzes whether there was ineffective assistance of appellate counsel

sufficient to excuse what would otherwise be procedural default. If ineffective

assistance of appellate counsel is found in step two, the OCCA then proceeds to

step three, where the omitted claim of trial error is fully reviewed on the merits.

Walker, 933 P.2d at 333-34 (“Under [§ 1089], [petitioners] must prove deficient

performance as a precondition to having their underlying claim reviewed.”).

Thus, for purposes of deciding whether to give federal deference under § 2254(d)

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to the OCCA’s finding of no ineffective assistance of appellate counsel, we focus

on step two of this Walker test.

As the OCCA acknowledged in Walker , the analysis of ineffective

assistance of counsel at step two “does not include the traditionally applied

two-pronged Strickland analysis,” because it eliminates the prejudice prong.

Walker , 933 P.2d at 333 n.23; see Le v. State , 953 P.2d 52, 54 (Okla. Crim. App.

1998) (upholding constitutionality of § 1089 despite acknowledged departure

from Strickland analysis). 5
The issue before us, then, is whether the OCCA’s

evaluation of appellate counsel’s performance in step two of its Walker analysis

comports with constitutional standards as determined by the United States

Supreme Court.

The OCCA has stated that because § 1089 eliminated the Strickland

requirement of prejudice, it therefore need not consider the merits of the omitted

claim in evaluating whether appellate counsel’s performance was deficient. In

Walker , the OCCA explained:

5
The OCCA held in Le that § 1089 did not violate constitutional strictures,
despite its displacement of the Strickland analysis for post-conviction claims of
ineffective appellate counsel, because nothing in the constitution obligates a state
legislature to extend any post-conviction remedy for such claims. Le, 953 P.2d at
54-55 (citing Coleman v. Thompson , 501 U.S. 722 (1991)). We need not consider
that question. All we address here is whether the OCCA’s resolution of
petitioner’s claim of ineffective appellate counsel comports with controlling
federal standards so as to trigger the deference principles in § 2254(d).

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 Before the enactment of the new statute, post-conviction
petitioners would simply argue their barred claims and summarily
conclude that their appellate counsel’s decision not to raise them or
manner of raising them constituted ineffective assistance under the
two-pronged Strickland test. In applying the prejudice prong of the
Strickland test to these allegations, this Court was essentially forced
to examine the merits of the allegedly mishandled but technically
waived claim in order to determine whether it was so serious as to
deprive the defendant of a fair trial and thus would have forced a
reversal or sentence modification on direct appeal. By eliminating a
capital post-conviction petitioner’s burden to prove prejudice for
ineffective assistance of appellate counsel allegations, the pivotal
and narrow threshold issue is now simply whether appellate counsel’s
performance was deficient under prevailing professional norms. This
issue may be fully analyzed without examining the merits of the
technically waived, substantive claim which was allegedly
mishandled.

Walker , 933 P.2d at 334 (emphasis added).

Walker ’s step-two truncation of the Strickland test thus enables the OCCA

to reject appellate ineffectiveness allegations without any assessment of the merits

of underlying predicate claims , so that the OCCA has been able to declare that a

“failure to raise even a meritorious claim does not, in itself, constitute deficient

performance.” Slaughter v. State , 969 P.2d 990, 996 (Okla. Crim. App. 1998)

(following Mitchell v. State , 934 P.2d 346, 350 (Okla. Crim. App. 1997), and

Walker , 933 P.2d at 336-37).

The OCCA’s post- Walker case law consistently reflects its understanding

that something over and above the merits of the omitted issue must be shown

before a petitioner can establish ineffective assistance of appellate counsel. The

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OCCA has on several occasions rejected claims that procedural default should be

excused because of ineffective assistance of appellate counsel by observing that,

“beyond arguing the substantive merits of the [omitted] claim, [the petitioner]

fails to present any facts showing why this omission constituted deficient

performance.” Johnson v. State , 952 P.2d 1003, 1006 (Okla. Crim. App. 1998);

Bryan v. State , 948 P.2d 1230, 1234 (Okla. Crim. App. 1997); see also Douglas v.

State , 953 P.2d 349, 353 (Okla. Crim. App. 1998) (invoking same principle with

slightly different formulation); McGregor v. State, 935 P.2d 332, 336 (Okla.

Crim. App. 1997) (same).

Since omission of a clearly meritorious claim is not, by that fact alone,

sufficient under Oklahoma law to establish ineffective assistance of appellate

counsel, and since the merits of the omitted claim need not even be considered in

evaluating whether appellate counsel’s performance was deficient, we look to see

what Oklahoma does require in order to find ineffective assistance of appellate

counsel.

What the OCCA requires to establish ineffective assistance of appellate

counsel under step two of the Walker test is suggested by Powell v. State , 935

P.2d 378 (Okla. Crim. App. 1997), which held that an ineffectiveness claim could

not succeed where the petitioner failed to provide “any evidence why appellate

counsel failed to raise the substantive claims [now] argued,” id. at 384 (emphasis

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added). This indicates that petitioners must establish not only a meritorious

omitted issue but also an improper motive or cause behind counsel’s omission of

the issue. See, e.g. , Walker , 933 P.2d at 335-36 (rejecting ineffectiveness claim

for lack of evidence that counsel “purposefully omitted meritorious appeal issues

because he wished to avoid angering [the trial] Judge”). This appears to involve

the very inquiry that the Supreme Court specifically repudiated in Murray , 477

U.S. at 487, which rejected a test for appellate ineffectiveness that would have

required courts “to determine what prompted counsel’s failure to raise the claim

in question.”

It is clearly wrong, as a matter of federal law, to require as a necessary

condition for relief under Strickland , something beyond the obvious merit of the

omitted claim. The very focus of a Strickland inquiry regarding performance of

appellate counsel is upon the merits of omitted issues, and no test that ignores the

merits of the omitted claim in conducting its ineffective assistance of appellate

counsel analysis comports with federal law. A sufficiently meritorious omitted

claim certainly can, by itself (or in relation to other issues that counsel did

pursue), establish constitutionally deficient performance by appellate counsel.

Because the OCCA’s analysis of petitioner’s appellate ineffectiveness allegations

deviated from the controlling federal standard, see Cargle , 947 P.2d at 588-89

(repeatedly invoking principle contrasted with Strickland here), it is not entitled

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to deference. 6
Of course, in this and in every case raising an ineffective appellate

counsel issue, whether the OCCA decision should be accorded AEDPA deference

will depend upon a case-specific determination of whether the OCCA followed

established Strickland standards, including the principle that ineffective appellate

assistance can be established on the basis of the demonstrable merit of the issue

omitted by counsel on the petitioner's direct appeal.

C. STATE PLAIN ERROR REVIEW, PROCEDURAL BAR AND
§ 2254(D) DEFERENCE

The OCCA reviewed some of the issues in this case for plain error. This

raises threshold questions about the effect of state plain-error review on

procedural bar and § 2254(d) deference principles. As for procedural bar, the

question is: does a state court’s plain-error review of an issue otherwise waived

for lack of a trial objection constitute a merits decision under Harris v. Reed , 489

U.S. 255 (1989), thus negating application of procedural bar, or does OCCA’s use

6
The OCCA’s opinion here could be read as suggesting an ineffectiveness
claim also requires a showing that an “external impediment” prevented counsel
from raising the omitted issues in question. See Cargle , 947 P.2d at 588-89. That
would conflate two separate principles; ineffective assistance and interference of
an external impediment are distinct, disjunctive grounds for excusing a procedural
default. See Murray , 477 U.S. at 488. The OCCA’s references to the notion of
an external impediment are ambiguous and we read them, consistent with Murray ,
as merely indicating that petitioner had failed to show that his default could be
excused on that basis as an alternative to establishing ineffective assistance.

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of the heightened standard of plain error constitute the enforcement of a state

waiver rule under Harris , thus necessitating application of procedural bar?

Courts addressing this question have arrived at very different answers. 7
As for

§ 2254(d), the question is: does a state court’s use of a plain-error standard affect

the deference that the federal court owes to the state court’s determination? Case

law explicitly addressing this question is scarce, though the Eighth Circuit

appears to hold that state plain-error review is entitled to § 2254(d) deference.

See James v. Bowersox , 187 F.3d 866, 869 (8 th Cir. 1999) (applying § 2254(d)

after noting state appellate court had summarily rejected claim on plain-error

review).

In our view, the answer to both questions depends on the substance of the

plain-error disposition. A state court may deny relief for a federal claim on

plain-error review because it finds the claim lacks merit under federal law. In

7
The Sixth and Seventh Circuits apply procedural bar to state plain error
review. See Hinkle v. Randle , 271 F.3d 239, 244 (6th Cir. 2001); Thomas v.
Gilmore , 144 F.3d 513, 518 (7th Cir. 1998). The Ninth Circuit holds otherwise,
concluding that state court plain error review is a merits determination that allows
the federal court also to conduct a merits review. See Walker v. Endell , 850 F.2d
470, 474 (9th Cir. 1987). The Eighth Circuit has inconsistent case law. S ee
Simmons v. Taylor , 195 F.3d 346, 348 (8th Cir. 1999) (citing Sweet v. Delo , 125
F.3d 1144, 1152 8 th Cir. 1997)). The Second Circuit appears to side with the
Sixth and Seventh Circuits, but qualifies its position by holding that if the state
plain-error review incorporated federal law, the resultant disposition would not
rest on the “independent state ground” necessary to support a procedural bar. See
Roy v. Coxon , 907 F.2d 385, 389-91 (2d Cir. 1990).

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such a case, there is no independent state ground of decision and, thus, no basis

for procedural bar. See Hux v. Murphy , 733 F.2d 737, 739 (10 th Cir. 1984)

(following approach we adopt here, though without consideration of analytical

complexities subsequently added by Harris and AEDPA). Consistent with that

conclusion, the state court’s disposition would be entitled to § 2254(d) deference

because it was a form of merits review. On the other hand, a state court could

deny relief for what it recognizes or assumes to be federal error, because of the

petitioner’s failure to satisfy some independent state law predicate. In such a

case, that non-merits predicate would constitute an independent state ground for

decision which would warrant application of procedural-bar principles on federal

habeas. If the state procedural bar were then excused for some reason, the federal

court would be left to resolve the substantive claim de novo, unconstrained by

§ 2254(d). See, e.g., McCracken v. Gibson , 268 F.3d 970, 977 (10 th Cir. 2001),

cert. denied , 123 S. Ct. 165 (2002); Hale v. Gibson , 227 F.3d 1298, 1238 (10 th

Cir. 2000), cert. denied , 533 U.S. 957 (2001).

D. CUMULATIVE ERROR INVOLVING SEPARATE CATEGORIES
OF ERROR

As explained in detail below, petitioner has established many instances of

constitutionally deficient performance by counsel, prosecutorial misconduct, and

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the admission of improper victim impact evidence at trial. In addition to claiming

that each of these distinct categories of error gave rise to sufficient prejudice, in

itself, to warrant habeas relief, petitioner argues that they provide an even more

compelling basis for relief when their combined prejudicial effect is collectively

assessed under cumulative-error principles.

Petitioner exhausted this claim by asserting cumulative error on both direct

appeal and post-conviction. The OCCA denied relief on appeal because the minor

trial errors it recognized did not combine to create sufficient prejudice to warrant

reversal, Cargle , 909 P.2d 833-34, and it denied relief on post-conviction because

the substantive claims raised by petitioner were rejected on procedural grounds,

Cargle , 947 P.2d at 589. Neither of these decisions assessed the aggregate

prejudice arising from the several constitutional errors we find here. Thus, our

cumulative-error review is not restricted by § 2254(d)(1)’s limited focus on

whether a state court decision was “contrary to, or involved an unreasonable

application of, clearly established Federal law, as determined by the Supreme

Court of the United States.” This limitation on federal habeas review applies only

when there is an antecedent state court decision on the same matter. Lacking

such a decision, we approach the question of cumulative error as we would have

prior to AEDPA’s passage, applying the legal principles we conclude properly

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govern its disposition, whether they have been stated specifically in decisions of

the Supreme Court or derived more generally from the federal case law.

“A cumulative-error analysis aggregates all errors found to be harmless and

analyzes whether their cumulative effect on the outcome of the trial is such that

collectively they can no longer be determined to be harmless.” United States v.

Toles , 297 F.3d 959, 972 (10 th Cir. 2002) (quotation omitted); see United States

v. Rivera , 900 F.2d 1462, 1470 (10 th Cir. 1990) (en banc). Consistent with the

unqualified reference to all errors , our cases reflect application of

cumulative-error review to legally diverse claims such as those here. See, e.g. ,

Toles, 297 F.3d at 972 (prosecutorial misconduct and improper limit on defense

cross-examination); United States v. Wood , 207 F.3d 1222, 1237-38 (10 th Cir.

2000) (reversed conviction because of the cumulative effect of the improper

denial of mid-trial acquittal on first and second degree murder and evidentiary

error); Moore v. Reynolds , 153 F.3d 1086, 1113 (10 th Cir. 1998) ( Brady error and

prosecutorial misconduct); United States v. Oberle , 136 F.3d 1414, 1423 (10 th

Cir. 1998) (prosecutorial misconduct and evidentiary error).

There is a further point to be made, arising from the fact that the particular

types of error considered here are governed in the first instance by substantive

standards which already incorporate an assessment of prejudice with respect to

the trial process as a whole: Strickland errors require us to assess whether there

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is a reasonable probability that counsel’s deficient performance affected the trial

outcome; Brady errors require us to look for the same reasonable probability that

the trial outcome was affected in order to assess the necessary “materiality” of

withheld evidence; 8
and claims of prosecutorial misconduct and admission of

improper victim impact evidence require a showing of fundamental unfairness in

order to provide habeas relief, 9
unless they involve the violation of specific

constitutional rights, in which case the principles governing such rights control. 10

These substantive prejudice components essentially duplicate the function of

harmless-error review. 11
Thus, such claims should be included in the

cumulative-error calculus if they have been individually denied for insufficient

prejudice. Indeed, to deny cumulative-error consideration of claims unless they

8
See United States v. Bagley , 473 U.S. 667, 682 (1985)
9
See Darden v. Wainwright, 477 U.S. 168, 181 (1986) (applying due process
standard from Donnelly v. DeChristoforo , 416 U.S. 637 (1974), to prosecutorial
misconduct claim); Payne v. Tennessee , 501 U.S. 808, 825 (1991) (applying
Darden/Donnelly standard to claim challenging victim impact evidence).
10
See, e.g. , Le v. Mullin , 311 F.3d 1002, 1013 (10 th Cir. 2002) (discussing
specific constitutional rights implicated by prosecutorial misconduct claim); Neill ,
278 F.3d at 1051-52 (analyzing challenge to victim impact evidence implicating
Ex Post Facto Clause).
11
See Kyles v. Whitley , 514 U.S. 419, 435 (1995) (holding that once material
Brady error is found, “there is no need for further harmless-error review”); Combs
v. Coyle , 205 F.3d 269, 291 n.18 (6 th Cir.) (applying Kyles in Strickland context),
531 U.S. 1035 (2002); Barrientes v. Johnson , 221 F.3d 741, 756 (5 th Cir. 2000)
(discussing Kyles in context of Brady , Strickland and Darden/Donnelly claims),
cert. dismissed , 531 U.S. 1134 (2001).

-22-
have first satisfied their individual substantive standards for actionable prejudice

“would render the cumulative error inquiry meaningless, since it [would] . . . be

predicated only upon individual error already requiring reversal.” Willingham v.

Mullin , 296 F.3d 917, 935 (10 th Cir. 2002).

E. CUMULATING GUILT-PHASE ERROR AND PENALTY-PHASE
ERROR

Petitioner did not partition his cumulative-error allegations into separate

guilt and penalty-phase claims. Rather, he broadly asserted that “accumulation of

all the trial errors entitled [him] to relief,” collectively claiming that these errors

“result[ed] in the first and second stage of []his trial [being] unreliable.” Thus,

his cumulative-error claim raises the possibility of guilt-phase error having a

continuing, cognizable effect on the penalty phase.

This commonsense notion that sentencing proceedings may be affected by

errors in the preceding guilt phase is not novel. One especially clear affirmation

of the principle, with respect to ineffective-assistance allegations, was recently

voiced by the Fifth Circuit in Moore v. Johnson , 194 F.3d 586 (5 th Cir. 1999):

The [State’s] argument may be reduced to the premise that deficient
performance occurring at the guilt phase of a capital trial may not be
deemed to prejudice a capital defendant during the punishment phase
of a capital trial. We reject this notion. When, as here, the same jury
considered guilt and punishment, the question is whether the

-23-
 cumulative errors of counsel rendered the jury’s findings, either as to
guilt or punishment, unreliable.

Id. at 619 (granting habeas relief from death sentence because counsel’s deficient

guilt-phase performance prejudiced outcome of penalty phase); see also Smith v.

Wainwright , 741 F.2d 1248, 1255 (11 th Cir. 1984) (granting evidentiary hearing

on trial ineffectiveness claim because counsel’s failure to impeach witness during

guilt phase “may not only have affected the outcome of the guilt/innocence phase,

it may have changed the outcome of the penalty trial”).

This court has likewise assessed guilt-phase errors, including prosecutorial

misconduct and evidentiary error, for prejudicial impact on subsequent capital

sentencing proceedings. See Coleman v. Saffle , 869 F.2d 1377, 1394-96 (10 th

Cir. 1989). However, given the procedural and temporal distance of guilt-phase

error from the penalty proceeding, we have noted that the chance or degree of

carry-over prejudice to the penalty phase may be attenuated. See id. at 1396.

Accordingly, our consideration of petitioner’s claim of error at the penalty

phase may be cumulated with guilt-phase error, so long as the prejudicial effect of

the latter influenced the jury’s determination of sentence.

-24-
F. NEW EVIDENCE, § 2254(E)(2), AND WILLIAMS/MILLER
EXCEPTION

The district court held an evidentiary hearing to develop the facts relating

to petitioner’s allegations of penalty-phase ineffective assistance. Ordinarily, a

petitioner must satisfy the conditions imposed by 28 U.S.C. § 2254(e)(2) before

being granted a hearing to augment the evidentiary basis for a claim. 12
However,

the State does not challenge the district court’s decision to hold the hearing, and,

though we would reach the same result in any event, the factual clarification

gained has certainly aided our informed review. Under the circumstances, we will

not second-guess the appropriateness of the hearing. Bryan v. Gibson, 276 F.3d

1163, 1172 n.6 (10 th Cir. 2001) (following Romano v. Gibson , 239 F.3d 1156,

1174 n.9 (10 th Cir.), cert. denied , 122 S. Ct. 624 (2002)).

12
§ 2254(e)(2) states:

If the [habeas] applicant has failed to develop the factual basis of a claim in
State court proceedings, the court shall not hold an evidentiary hearing on
the same claim unless the applicant shows that–
(A) the claim relies on–
(i) a new rule of constitutional law, made retroactive to cases on
collateral review by the Supreme Court, that was previously unavailable; or
(ii) a factual predicate that could not have been previously discovered
through the exercise of due diligence; and
(B) the facts underlying the claim would be sufficient to establish by clear
and convincing evidence that but for the constitutional error, no reasonable
fact-finder would have found the applicant guilty of the underlying offense.

-25-
 Petitioner also supported some of his allegations, particularly those relating

to guilt-phase ineffective assistance, with documentary evidence that he had not

submitted in state court. While § 2254(e)(2) refers only to evidentiary hearings, it

governs as well “[w]hen expansion of the record is used to achieve the same end

as an evidentiary hearing.” Boyko v. Parke , 259 F.3d 781, 790 (7 th Cir. 2001);

see Dorsey v. Chapman , 262 F.3d 1181, 1190 (11 th Cir. 2001), cert. denied , 122

S. Ct. 1567 (2002). In this regard, however, petitioner requested the opportunity

to develop relevant evidence through discovery and an evidentiary hearing in state

court, which the OCCA summarily refused after rejecting his ineffectiveness

claims as procedurally defaulted (on what we explain infra were inadequate state

grounds). See Cargle , 947 P.2d at 590. Thus, petitioner did not fail “to develop

the factual basis” of his claim in state court, as that threshold condition in

§ 2254(e)(2) has been construed by this circuit and the Supreme Court. See

Williams , 529 U.S. at 435-37 (explaining “fault component” in statutory

condition); Miller v. Champion , 161 F.3d 1249, 1253 (10 th Cir. 1998) (presaging

Williams ). Therefore, petitioner properly supported his allegations with the

additional evidence submitted to the district court.

-26-
 II. MERITS ANALYSIS

A. OVERVIEW

Petitioner challenges both his convictions and sentences. We conclude he

is entitled to relief in both respects on the basis of ineffective assistance of trial

counsel and, alternatively, on the basis of cumulative error combining ineffective

assistance of counsel with instances of prosecutorial misconduct and the use of

improper victim impact evidence.

We begin with a brief overview of counsel’s grossly deficient efforts and

the unusual external pressures upon counsel, as well as the weaknesses in the

State’s case which would have rendered it particularly vulnerable to true

adversarial testing. We will then take up the parties’ specific legal contentions

regarding the errors which lead us to grant petitioner habeas relief from both his

convictions and sentences.

Petitioner’s parents retained counsel in November 1993 when, unbeknownst

to them, counsel was embroiled in bankruptcy proceedings and a professional

grievance investigation against him. By the time of petitioner’s preliminary

hearing in February 1994, counsel had become the target of a criminal tax probe

as well. Within a year and a half, counsel had been convicted on a federal tax

charge and had resigned from the bar.

-27-
 The strain of these overlapping pressures on counsel is evident. While his

grievance case was set, continued, and reset throughout the spring of 1994, he

never visited petitioner at the county jail. Petitioner’s parents came to see

counsel a couple of times, but these visits primarily concerned matters pertaining

to counsel’s fee. Days after yet another setting of the grievance case was

continued on May 27–and just four weeks before petitioner’s trial was scheduled

to commence–counsel finally requested a transcript of petitioner’s preliminary

hearing, went to see him at the jail for the first time, and moved for a continuance

in petitioner’s case, conceding he could not be prepared to try the case by the

June 20 trial date. When the motions for continuance and for the preliminary

hearing transcript came on for hearing on June 2, however, counsel failed to

appear and the motions consequently were denied. Two weeks later, counsel

visited petitioner for the second and last time at the jail. Petitioner claims

counsel’s desperate advice at this eleventh-hour meeting was for him to feign

incompetency when he appeared for trial the next week and, indeed, counsel

moved for a competency determination on the first day of trial. The transcript

suggests a half-hearted and promptly-abandoned acquiescence in this scheme by

petitioner, who was quickly determined competent before voir dire began.

The last-ditch efforts to forestall trial were undoubtedly driven by counsel’s

woeful state of preparation. The only potential witnesses he interviewed were

-28-
petitioner and his parents, and the value of these typically crucial discussions with

the accused and his family was greatly limited by time (counsel evidently spent

less than an hour with his client before trial) and counsel’s failure to engage

himself with the substance of the case. Petitioner and his parents said counsel

never discussed trial strategy with them, instead giving them generic assurances

that he had never lost a case. He made little or no effort to draw exculpatory or

mitigation evidence from them, or to develop and follow leads to other sources of

such information. Indeed, counsel did not even explain the two-stage process of

capital prosecution, leaving them ignorant in particular about the penalty phase

and the nature of mitigation evidence. Counsel thus essentially foreclosed any

helpful disclosures from those most likely to know, first-hand, the pertinent facts.

And in the end, none of these often critical witnesses–people whom jurors

understandably expect to hear from in the penalty phase in every death penalty

case–took the stand.

Counsel offered just two witnesses for the defense, one in the guilt phase

and one in the penalty phase, and neither presentation bespeaks professional trial

preparation. In the guilt phase, petitioner’s longtime friend, Steven Butler,

testified that Chris Jackson told him Todd Williams shot both of the victims,

contrary to Jackson’s trial testimony that petitioner shot Sharon Paisley.

Significantly, it was Butler who contacted counsel just before trial to offer this

-29-
testimony. This last-minute, fortuitous witness (who provided a mere seven pages

of direct testimony), constituted the entire defense case in the guilt phase. 13

The penalty-phase defense appears to have been, literally, an after-thought.

Counsel, who had not prepared anyone to testify at this stage of trial, waived an

opening statement. After the State completed its case in aggravation, counsel

turned to the courtroom crowd and secured his only witness when the pastor at

petitioner’s church offered to take the stand. The pastor’s brief, unprepared,

personally remote, and fairly generic testimony was “more like [a] first-time

interview[] conducted during discovery than the presentation of a defense at a

capital murder trial.” Fisher v. Gibson , 282 F.3d 1283, 1294 (10 th Cir. 2002).

Significantly, neither petitioner nor his parents testified. Indeed, from testimony

at the habeas hearing found credible by the district judge, it appears counsel

actively deterred petitioner’s parents from testifying, presumably to cover his

blatant lack of preparation, when it finally became apparent that they might do so.

Further, counsel arguably lied to the trial judge about petitioner’s alleged decision

not to testify on his own behalf. Counsel told the judge, in chambers without

petitioner present, that petitioner had, in front of his father and pastor, elected not

13
Further, Butler’s testimony just opened the door for State rebuttal from
Chris Jackson’s parents, bolstering Jackson’s self-serving trial account of the
murders with prior consistent statements he allegedly made to them shortly after
the murders were committed. Defense counsel had nothing prepared to offer by
way of sur-rebuttal.

-30-
to testify at the second stage. The habeas testimony of petitioner, his father, and

the pastor all flatly contradicted the story counsel had told the trial judge, and the

relevant portions of the state trial record contain nothing to suggest the incident

counsel described had ever taken place. In all, counsel’s gross mishandling of the

penalty-phase defense left his client’s fate to jurors who could only wonder why

neither the man himself nor any member of his family would step up to explain, in

personal human terms, why his life should be spared notwithstanding the

reprehensible conduct of which he had been found guilty.

Counsel’s failure to prepare any significant guilt or penalty-phase defense

case, as damning as that is, reflects just part of the ineffectiveness claim here.

Counsel also critically failed to investigate and effectively attack the State’s case,

particularly with regard to the two absolutely critical, yet vulnerable, witnesses

upon which the State’s case depended.

The State had no physical evidence showing that petitioner had shot either

of the victims or that he had aided and abetted either murder. The State also had

no eyewitnesses other than the three men involved in the crime, and one of them,

Todd Williams, did not appear at petitioner’s trial. The other participant, Chris

Jackson, testified he saw petitioner shoot Sharon Paisley. As a result, the State’s

capital case against petitioner rested on Chris Jackson’s shoulders–a precarious

position, in that Jackson himself had been charged in the murders until he

-31-
deflected guilt onto petitioner (and, in the process, secured immunity from aiding

and abetting charges). In essence, the case came down to a credibility battle

between Jackson and petitioner, 14
requiring the State to convince the jury beyond

a reasonable doubt that Jackson was the one telling the truth. The other critical

State witness was a third party, Luke Jones, who was not present at the murders

but who testified that petitioner had told him that he (petitioner) shot and killed

Sharon. However, Jones’ testimony, like Jackson’s testimony, was highly

impeachable by any competent lawyer.

Nevertheless, petitioner’s counsel did virtually nothing to prepare an

effective cross-examination to test their credibility. Significant grounds for such

impeachment existed, both as to the content of their testimony and as to the

consideration they received in exchange for their testimony. But, through

counsel’s inaction, and partly also through the State’s misrepresentation, counsel

simply did not have these means of impeachment at his disposal during trial.

In sum, as we explain more fully below, counsel did not properly confer

with and advise his client, did not interview and prepare even obvious defense

witnesses, did not develop available exculpatory/mitigating evidence, did not

investigate sources for impeachment of the crucial prosecution witnesses,

14
Petitioner did not testify at trial, but the jury was shown his videotaped
police interview, in which he repeatedly denied any guilt or complicity and
claimed that Williams had shot both the victims.

-32-
disloyally impeached his own client, and failed to expose the State’s relatively

weak case to meaningful adversarial testing. Petitioner was denied effective

counsel on the capital charges against him.

B. GUILT-PHASE ERRORS

1. Ineffective Assistance of Counsel

a) Standard of Review

Some of petitioner’s allegations of trial ineffectiveness were raised for the

first time in his federal petition, and we do not consider these in granting habeas

relief. 15 Most of the allegations we are concerned with were raised in petitioner’s

15
The district court properly held that such unexhausted claims, no longer
available in state court where they would be defaulted due to their omission from
petitioner’s first state post-conviction application, were procedurally barred. See
Hawkins v. Mullin , 291 F.3d 658, 668 (10 th Cir. 2002) (following Coleman v.
Thompson , 501 U.S. 722, 735 n.1 (1991)); Moore v. Schoeman , 288 F.3d 1231,
1233 (10 th Cir. 2002) (designating operative principle as “anticipatory procedural
bar”). Petitioner seeks to avoid this conclusion by arguing that an absence of
corrective process in the state criminal/post-conviction system undermines the
validity of its default rule. Although there may be an element of futility in
requiring petitioner to present his ineffectiveness claims in his first state post-
conviction petition since the OCCA routinely holds such claims procedurally
barred if not presented on direct appeal, our prior case law nevertheless requires a
petitioner to take this step to present to the OCCA his ineffectiveness claims in
the first post-conviction application before presenting those claims to a federal
court. We rejected the same basic argument in Cannon v. Gibson , 259 F.3d 1253
(10 th Cir. 2001), cert. denied , 122 S. Ct. 1966 (2002), noting it was “clearly
(continued...)

-33-
application for post-conviction relief. The OCCA summarily rejected these

claims of attorney ineffectiveness because they were not raised on direct appeal.

However, these claims require consideration of matters outside the trial court

record and we have repeatedly held under such circumstances that Oklahoma’s

procedural bar rule is inadequate to bar federal review. See Revilla v. Gibson ,

283 F.3d at 1220; Sallahdin v. Gibson , 275 F.3d 1211, 1234 (10 th Cir. 2002);

Romano, 239 F.3d at 1179 . Because the OCCA did not address the merits of

these allegations, our review is not constrained by the deference principles in

§ 2254(d). See Revilla , 283 F.3d at 1220; Sallahdin , 275 F.3d at 1234-35.

We also consider one ineffectiveness claim that was rejected on its merits

in state court. The OCCA held counsel’s failure to obtain the preliminary hearing

transcript “fell below acceptable levels of professionalism,” but denied relief

because petitioner could not show that this error would likely have had an effect

on the outcome of the proceeding. Cargle , 909 P.2d at 833. Because this

prejudice determination was neither contrary to nor an unreasonable application

of Strickland , we cannot grant relief on this error alone. However, our decision

to grant relief on ineffective assistance grounds is a function of the prejudice

15
(...continued)
foreclosed by a series of Tenth Circuit cases affirming the adequacy of the
Oklahoma procedural bar relating to claims not raised in an initial state petition
for post-conviction review.” Id. at 1266. It remains so.

-34-
flowing from all of counsel’s deficient performance–as Strickland directs it to be.

See Strickland , 466 U.S. at 694-96 (repeatedly stating prejudice inquiry in

aggregate terms of reasonable probability counsel’s errors affected outcome of

proceeding); see Fisher , 282 F.3d at 1307-11 (assessing prejudice from counsel’s

“numerous shortcomings [and] omissions,” and holding “these errors” had a

“devastating impact on the defense”); Turner v. Duncan , 158 F.3d 449, 457 (9 th

Cir. 1998) (“it is appropriate to consider the cumulative impact of [counsel’s]

errors in assessing prejudice”). Given the OCCA’s procedural rejection of nearly

all of petitioner’s allegations of ineffectiveness, an adequate assessment of

prejudice arising from the ineffectiveness of petitioner’s counsel has never been

made in the state courts, so we have no state decision to defer to under § 2254(d)

on this issue.

b) Failure to Interview and Call Witnesses

Counsel failed to speak with many obvious potential witnesses. Even a

rudimentary investigation would have involved contacting, for example, those

people who were with petitioner and Jackson at petitioner’s uncle’s house when

they left to go to the Paisleys’ home and when they returned. In this group were

petitioner’s aunt, Dewonna Cargle, and Jackson’s girlfriend, Angel Harris. Both

of these women would have contradicted various aspects of Jackson’s “innocent”

-35-
account of his conduct that cast blame instead on petitioner. Indeed, these two

women would have testified that immediately upon his return from the Paisleys’,

Jackson bragged about having killed one or both of the victims himself.

Jackson evidently told yet another story about the murders to Mark Gaddis,

another possible witness that counsel never pursued, even though the application

for petitioner’s arrest warrant referred to an informant (Mark Gaddis), who later

testified at Todd Williams’ trial. The prosecution did not call Gaddis as a

witness, and defense counsel flatly ignored the matter. Gaddis was contacted in

connection with these habeas proceedings, however, and gave a much cloudier

picture of what Jackson had said about the murders. Gaddis revealed that Jackson

made the much more equivocal statement that Williams had made either him

(Jackson) or petitioner shoot Sharon. Further, after it became known he was to be

a prosecution witness, Jackson assured Dewonna Cargle he would straighten it out

and not let petitioner go down for something he did not do. Even more telling

was Jackson’s alleged pretrial offer to petitioner’s parents, which they recounted

in affidavits and at the habeas hearing, that he would not testify against petitioner

if they paid him money. Thus, at least five potential witnesses stated that, before

trial, Jackson had indicated his testimony would be materially different than it

turned out to be, had suggested that his testimony remained open to influence and

alteration, and had made statements flatly contradicting his testimony. All of this

-36-
could have been discovered if counsel had properly interviewed these witnesses

before trial, but he did not do so.

A similar story of dereliction surrounds the State’s other key witness, Luke

Jones. Luke Jones testified that petitioner had confessed to him that he had killed

Sharon Paisley, while the two of them were staying with petitioner’s mother

shortly after the murders. However, Jones’ credibility was open to impeachment

through an obvious source–his wife, Tisha Harris, who was the victim of repeated

protection-order violations for which Jones was confined when he offered his

information against petitioner. Jones told Tisha Harris he was not worried about

the protection-order violations because he had information to offer the authorities

about a murder that petitioner had witnessed. Then, in direct contradiction of his

later trial testimony, Jones expressly exonerated petitioner, telling Tisha Harris

that petitioner said he had not killed anyone. Counsel, however, never

interviewed Harris and, thus, was unaware of this impeachment evidence, which

certainly would have amplified suspicions roused by what the jury knew of the

consideration given by the State in exchange for Jones’ appearance at trial.

Over and above the incremental benefit each of these six witnesses would

have added to the defense in impeaching the government’s two central witnesses

(Jackson and Jones), there is the larger point that they could have, collectively,

provided an effective overall defense strategy (particularly in a case resting

-37-
almost entirely on the credibility of these two inherently vulnerable prosecution

witnesses) that counsel utterly failed to see, much less effectively employ:

showing that the case involved such a tangle of inter- and intra-witness

inconsistency that the jury could not be confident enough in any person’s word to

justify holding petitioner responsible for first degree murder beyond a reasonable

doubt.

With the kind of trial preparation expected of any competent counsel in a

death case, counsel could have left the jury faced with: (1) Angel Harris,

Dewonna Cargle, Gaddis, and Butler, all contradicting Jackson’s trial testimony

with his own prior inconsistent statements on several key points, including

attribution of guilt for the murders to himself and/or Williams; (2) petitioner’s

parents and Dewonna Cargle indicating that Jackson had held out his trial

testimony as a matter subject to influence and change; (3) Gaddis and Butler

relating petitioner’s accounts of his own innocence; and (4) Tisha Harris’

impeachment of Jones with his prior statement to her expressing petitioner’s

innocence. Instead of exposing this Gordian knot of inconsistencies and lies,

counsel effectively acquiesced in the case being tried as a neat three-act play:

Jackson and Jones establishing petitioner’s guilt; Butler, alone, trying to save his

friend by insisting Jackson had told him petitioner was innocent; and Jackson’s

parents brought out at the end to confirm that Jackson had been telling a

-38-
consistent story ever since the murders occurred. There is no plausible reason

other than counsel’s self-inflicted ignorance for allowing the prosecution to

control the presentation in this way and, in our view, the difference in these

scenarios reflects a persuasive case for Strickland prejudice. There are,

moreover, further omissions by counsel to consider.

c) Failure to Impeach Jackson Based upon Undisclosed Bias and
State Inducement for his Testimony

Counsel failed to inquire into a deferred sentence pending (and not

accelerated) against Jackson at the time of trial and counsel failed to discover and

present to the jury the true extent of the immunity afforded Jackson when he

agreed to testify against petitioner. 16

Jackson’s written agreement with the district attorney was admitted at trial.

It granted Jackson “immunity from prosecution for the crimes of Murder in the

First Degree involving the deaths of Richard and Sharon Paisley and Accessory to

Murder involving the deaths of Richard and Sharon Paisley.” The document

16
Additionally, as noted previously, counsel did not obtain the preliminary
hearing transcript with which to cross-examine Jackson. Although we accept the
OCCA determination that this was not sufficiently prejudicial in itself to warrant
relief, we can consider de novo its prejudicial impact in conjunction with other
counsel error.

-39-
affirms that it reflects “the entire agreement” between Jackson and the district

attorney.

However, there evidently was an additional, and quite significant, quid pro

quo for Jackson’s cooperation, which was not recited in the agreement and never

disclosed to the jury. In 1992, Jackson had been charged for assault with a deadly

weapon, carrying a maximum twenty-year sentence. In exchange for his guilty

plea to that offense, sentencing was deferred for five years. Thus, if Jackson had

any other state law violation during this five-year period, he could be sentenced

immediately on the assault offense. Jackson’s admitted conduct in this case

(assisting in wiping off fingerprints at the scene and agreeing with the others not

to tell the authorities anything) made him a potential accessory under Okla. Stat.

tit. 21 § 173, thereby exposing him to an immediate sentence of up to twenty

years’ imprisonment on the pre-existing assault conviction in addition to the

uncertain charges that could have been brought against him in this case. When

asked by an investigator, in connection with this habeas proceeding, whether

non-acceleration of the deferred sentence had been a (tacit) part of his agreement

to testify in petitioner’s case, Jackson admitted that he had received an assurance

from the district attorney that nothing would come up in court about the deferred

sentence.

-40-
 Counsel knew about Jackson’s deferred sentence. Any competent attorney

would have discerned the legal connection between Jackson’s conduct in this case

and the conditions sufficient to trigger acceleration of the deferred sentence. 17

Quite apart from the tacit quid pro quo assurances, Jackson’s mere exposure to

this punitive threat was pertinent to the jury’s assessment of his motivation for

testifying. Like a pending criminal charge or possible probation violation, this

threat was “relevant to show pro-government bias on the part of the testifying

witness, on the theory that the witness might tailor [his] testimony to please the

prosecutor.” Stephens v. Hall , 294 F.3d 210, 224 (1 st Cir. 2002); see Davis v.

Alaska , 415 U.S. 308, 311 (1974). Yet counsel erroneously confessed a pretrial

motion in limine preventing the defense “from mentioning, referring to, inferring

or in any way informing the jury” about Jackson’s deferred sentence. 18

17
In addition to omitting any reference to the deferred sentence in the written
plea agreement, which furthermore represented that it was the parties’ entire
agreement, the State represented in its motion in limine that “[t]he deferred
sentence is not included in [Jackson’s] agreement to testify.” We do not suggest
that these representations by the State make counsel’s own omissions reasonable,
but even supposing they did, they would also excuse petitioner’s failure to
exhaust his related Brady claim (which our ineffectiveness analysis renders
redundant). See Cannon , 259 F.3d at 1269. And, as discussed earlier, our
cumulative prejudice analysis is not affected by the label applied to the errors
involved.
18
The motion asserted as justification for the relief request that a deferred
sentence is not a prior conviction for purposes of “impeachment by evidence of
conviction of a crime” under Okla. Stat. tit. 12, § 2609. See White v. State , 702
P.2d 1058, 1062 (Okla. Crim. App. 1985). However, there is an obvious
(continued...)

-41-
 Thus, counsel abandoned an important avenue of impeachment as to the

State’s star witness. This involves a dimension of prejudice distinct from the

prior-inconsistent-statement evidence noted earlier in Part II B 1 (b): “A

colorable showing of bias can be important because, unlike evidence of prior

inconsistent statements–which might indicate that the witness is lying–evidence of

bias suggests why the witness might by lying.” Hall , 294 F.3d at 224. And such

impeachment “‘increases in sensitivity in direct proportion to [the] witness’s

importance’ to [the] state’s case.” Jones v. Gibson , 206 F.3d 946, 955-57 (10 th

Cir. 2000) (discussing counsel’s inability to question witness regarding pending

charges against her).

The State may permissibly offer certain forms of advantageous treatment,

such as forbearance on potential charges or favorable recommendations as to

sentencing, to secure the cooperation of a witness. See generally United States v.

Singleton , 165 F.3d 1297 (10 th Cir. 1999) (en banc). Critical to the sanction of

this practice, however, are certain procedural safeguards, “prohibiting the

18
(...continued)
distinction between general impeachment by prior conviction and particularized
impeachment through “possible biases, prejudices, or ulterior motives” arising in
connection with as-yet uninitiated or uncompleted criminal prosecution. Davis ,
415 U.S. at 316-17. Section 2609 does not preempt other means of impeachment,
and “a witness may be cross-examined about any matter tending to show his bias.”
Beck v. State , 824 P.2d 385, 388 (Okla. Crim. App. 1991) (holding trial court
erred in restricting cross-examination of witness about pending charges and
charges which had been dismissed).

-42-
government’s deliberate use of perjured testimony, requiring the government to

timely disclose the [terms of witness agreements], and providing [the defense] an

adequate opportunity to cross-examine the witnesses about those agreements.”

United States v. Fria Vazquez Del Mercado , 223 F.3d 1213, 1215 (10 th Cir.),

cert. denied , 531 U.S. 1027 (2000); see also Romano , 239 F.3d at 1174 (“The

government must disclose any understanding or agreement it has with its

witnesses.”). A conviction based on testimony implicating concealed incentives

to an important witness is potentially tainted. See Giglio v. United States , 405

U.S. 150, 154-55 (1972); Carriger v. Stewart , 132 F.3d 463, 479-82 (9 th Cir.

1997) (reversing conviction for nondisclosure of evidence relating to witness

agreement and explaining that “criminals who are rewarded by the government

[by being granted immunity] for their testimony are inherently untrustworthy”).

While challenges in this regard are typically advanced in connection with

allegations of misconduct by the prosecution, they may also be advanced, as here,

in connection with a claim that petitioner’s “trial attorney was ineffective for

failing to investigate adequately whether [a witness] had a deal with prosecutors.”

Romano , 239 F.3d at 1173 n.7; see also Hall , 294 F.3d at 214. The prejudice

flowing from such counsel error is magnified here by the crucial nature of

Jackson’s testimony to the State’s case.

-43-
 d) Counsel’s Failure to Challenge the State’s Bolstering of
Jones’ Testimony through Mitchell

Jones was the State’s other critical witness, because he testified petitioner

had confessed to him about killing Sharon Paisley. The State apparently tried to

bolster the credibility of Jones’ testimony by emphasizing its originality (and,

hence, freedom from influence). Detective Ron Mitchell told the jury that before

Jones came forward with his account of the murders, Mitchell did not know how

the murders had occurred and had never even heard of petitioner, Williams, or

Jackson. The district court found Mitchell’s representations of such prior

ignorance incredible. We agree. Weeks before Jones offered any information,

Gaddis had already spoken with the authorities, relating what petitioner had told

him about the murders and identifying all three participants. As Mitchell was the

detective in charge of the investigation, to suggest that Mitchell did not know

those details when Jones first talked to authorities would have been ludicrous.

Indeed, on the same day Jones talked to the State, Mitchell prepared an arrest

warrant based on information from Jones and Gaddis . 19 Even minimal effort on

counsel’s part, such as reading the arrest warrant for his client, would have

revealed enough of these facts to permit pointed impeachment of Mitchell’s

professed ignorance of those facts before learning of them from Jones.

19
Mitchell was able to identify Williams–whose last name Jones did not even
know–by name, date of birth, physical description and last known address.

-44-
 Nevertheless, the district court discounted the matter, concluding there was

no reasonable probability that impeaching Mitchell would have changed the trial

outcome. Admittedly, Mitchell himself did not play an important role in the

State’s case. Yet this impeachment would have shown the jury that even the

police testimony in this case may not be believed, making the jury’s task of

discerning the truth of petitioner’s guilt beyond a reasonable doubt even less

attainable. Further, for the jury to see the police as lying on this point would

have destroyed the State’s effort to bolster Jones–and left the jury understandably

suspicious of this mercenary criminal informant whose dubious credibility had

prompted such an improper vouching effort.

e) Counsel’s Disparagement of his own Client

Petitioner’s counsel failed to pursue a defense based on a severe injury to

petitioner’s right hand that occurred less than two months before the shooting and

instead suggested to the jury that petitioner (his own client) had lied about the

significance of the injury during his videotaped police interview. 20
While we

agree with the district court that counsel’s decision not to press the issue of

20
Counsel ridiculed petitioner’s post-arrest videotaped statement that a very
serious (and factually substantiated) injury to his right hand, requiring surgery
less than two months before the murders, would have impeded his ability to use a
weapon, inexplicably describing petitioner’s statement as “the old phony my hand
don’t work now deal.”

-45-
petitioner’s hand injury as an affirmative defense could be justified as a matter of

defense strategy, 21
there is disloyalty and impeachment by counsel of his own

client implicated here which is not obviated by that strategy.

When counsel mocked petitioner’s complaints of a medically established

injury to his hand as an “old phony” ruse, counsel demonstrated a “fundamental

violation of his duty of loyalty by exhibiting actual doubt and hostility toward his

client’s case.” Fisher , 282 F.3d at 1300. In essence, counsel gratuitously called

his client a liar, in a case that was all about credibility (though petitioner did not

take the stand at trial, the jury was shown the police interview in which he denied

committing the murder). “We can neither discern nor conceive of a trial strategy

that would justify this treatment of one’s own client, which so clearly cast doubt

upon . . . his credibility and integrity before the jury.” Id. at 1302.

f) Failure to Object to Prosecutorial Misconduct

Petitioner also complains counsel ineffectively challenged or failed to

challenge certain alleged instances of prosecutorial misconduct. The latter

21
While the evidence showed that the injury had been severe, it did not
necessarily preclude petitioner’s firing of the gun that killed Sharon Paisley, with
his left hand if necessary. Under the circumstances, we cannot say this is that
rare occasion when counsel’s informed strategic choice was professionally
unreasonable. Bullock v. Carver , 297 F.3d 1036, 1046 (10 th Cir.), cert. denied,
2002 WL 3197528 (U.S. Dec. 16, 2002).

-46-
allegations will be taken up in their own right below and, particularly in light of

our cumulative-error analysis, we need not redundantly and prematurely consider

them here. There is, however, one relevant point that may best be noted now.

That is, any effort by the State to deflect responsibility for prosecutorial

misconduct or to discount the resultant prejudice by blaming defense counsel for

not objecting to/curing the errors would support petitioner’s case for relief in

connection with his associated allegations of ineffective assistance.

g) Conclusion as to Ineffective Assistance at the Guilt Stage

For the reasons set forth above, we conclude that petitioner is entitled to

habeas relief from his conviction based upon the ineffectiveness of his counsel at

the guilt phase of his trial. See Strickland , 466 U.S. 668.

2. Prosecutorial Misconduct

a) Statement that State Does not Prosecute Innocent People

During closing argument, the prosecutor assured the jury that his office

prosecutes only those who are guilty:

Ladies and Gentleman, all we want is justice. . . . [W]hat in the
world have I or [assistant district attorney] Mrs. Smith or the D.A.’s
Office or the police department got to gain by even trying to convict
an innocent person? It would destroy our credibility. It would–it
would fly in the face of everything we believe in and everything we
do. We don’t do those things.

-47-
 “‘[I]t is always improper for a prosecutor to suggest that a defendant is

guilty merely because he is being prosecuted.’” Washington v. Hofbauer , 228

F.3d 689, 701-02 (6 th Cir. 2000) (quoting United States v. Bess , 593 F.2d 749,

754 (6th Cir. 1979) (collecting cases)); Hopkinson v. Shillinger , 866 F.2d 1185,

1209 (10 th Cir.) (such suggestions are “particularly egregious”), aff’d 888 F.2d

1286 (10 th Cir. 1989) (en banc), overruling on other grounds recognized in Davis

v. Maynard , 911 F.2d 415, 417 (10 th Cir. 1990); Devine v. United States , 403

F.2d 93, 96 (10 th Cir. 1968) (such suggestions “are to be deplored”); United

States v. Splain , 545 F.2d 1131, 1134 (8 th Cir. 1976) (such suggestions “have no

place in a criminal trial”); see Young , 470 U.S. at 18 (prosecutor’s expression of

personal opinion of guilt is improper).

Several important considerations explain the universal denunciation of this

type of argument. As the State’s official representative prosecuting the case on

the public’s behalf, the prosecuting attorney “carries a special aura of legitimacy

about him,” Bess , 593 F.2d 755. Thus, “‘the prosecutor’s opinion carries with it

the imprimatur of the Government and may induce the jury to trust the

Government’s judgment rather than its own.’” Hopkinson , 866 F.2d at 1209

(quoting Young , 470 U.S. at 18-19). Further, the prosecutor’s personal

“experience in criminal trials may induce the jury to accord unwarranted weight

to [his opinions regarding the defendant’s guilt].” Splain , 545 F.2d at 1135; see

-48-
Bess , 593 F.2d at 755. Finally, the jury might think that the prosecutor’s opinion

is based on evidence beyond that presented at trial.

In short, prosecutorial arguments such as the one quoted above “infringe

upon the role of the jury as fact finder and determiner of guilt or innocence. They

amount to inadmissible and highly prejudicial evidence.” Bess , 593 F.2d at 755;

see also Splain , 545 F.2d 1134-35 (explaining that prosecutor who expresses

personal opinion of case “transgress[es] his inviolate responsibility of objectively,

yet forcefully, presenting the Government’s case at trial and leaving the ultimate

question of innocence or guilt to the jury ” (emphasis added)).

Whether habeas relief is warranted on this basis alone depends on a

“fundamental fairness” assessment of the misconduct viewed in the context of the

entire trial. See Hopkinson , 866 F.2d at 1210. We need not decide that issue here

because in any event it offers substantial additional support for petitioner’s claim

of cumulative error. 22

22
This misconduct claim was first raised on state post-conviction, where it
was held defaulted. Petitioner argued the default should be excused on the basis
of appellate counsel’s ineffectiveness, a claim the OCCA denied under the wrong
performance standard (see earlier discussion). On de novo consideration, we
conclude appellate counsel was professionally deficient in failing to recognize the
obvious and serious misconduct noted above. As for prejudice, we have no
trouble concluding that, as part of the cumulative-error claim pursued on direct
appeal (and post-conviction), it would and should have played a material role in
creating a reasonable probability of a favorable outcome. Thus, we consider it in
that regard here.

-49-
 b) Vouching for Jackson

Petitioner argued on his direct appeal that the prosecution had improperly

vouched for Jackson’s credibility through introduction of and commentary on

Jackson’s immunity agreement. The immunity agreement, which was introduced

into evidence, recited that (1) Jackson would testify truthfully, (2) he would

subject himself to scientific testing, (3) his information must be capable of

corroboration by independent evidence, and (4) the agreement would be void

should evidence arise that he was a principal in the murders.

The OCCA approved the admission of the agreement into evidence. The

OCCA held the provision relating to truthfulness was not a problem because that

provision did “‘no more than reveal that [Jackson] had an obligation to testify

truthfully and explain the consequences of a breach of that obligation.’” Cargle ,

909 P.2d at 823 (quoting state decision quoting United States v. Bowie , 892 F.2d

1494, 1498 (10th Cir. 1990)). The provisions relating to corroboration

(provisions 2 and 3, above) raised more concern, as the use of testimonial

agreements “‘becomes impermissible vouching . . . when the prosecutors

explicitly or implicitly indicate that they can monitor and accurately verify the

truthfulness of the witness’ testimony.’” Id. (quoting state decision quoting

Bowie , 892 F.3d at 1498); see Young , 470 U.S. at 16, 18 (recognizing it is

improper for prosecution to “convey the impression that evidence not presented to

-50-
the jury, but known to the prosecutor, supports the charges against the

defendant”). However, the OCCA noted that while “the agreement said Jackson’s

information must be ‘capable’ of being corroborated independently, it does not

state authorities have done so or would be able to do so.” Cargle , 909 P.2d at

823. Thus, the OCCA held no error had been committed.

That conclusion is at least suspect under controlling federal law as

determined by the United States Supreme Court. The agreement’s requirement

that (1) Jackson’s account be capable of confirmation by independent evidence

and (2) that he would subject himself to scientific testing (for the obvious purpose

of corroboration), coupled with the fact that the government put on his testimony,

unavoidably implies to the jury that his truthfulness was corroborated outside the

record by the State, and thus those provisions in the agreement lent “the

imprimatur of the Government” to his testimony, potentially “induc[ing] the jury

to trust the Government’s judgment rather than its own view of the evidence.”

Young , 470 U.S. at 18-19. In Bowie , 892 F.2d at 1498, we held that “use of the

‘truthfulness’ portions of [a plea agreement to testify] becomes impermissible

vouching . . . when the prosecutors explicitly or implicitly indicate that they can

monitor and accurately verify the truthfulness of the witness’ testimony.”

(Emphasis added.) It is clearly impermissible to bolster a State witness by

suggesting that information available to the prosecution but not presented to the

-51-
jury supports the witness’s testimony. Bowie , 892 F.2d at 1498; see Young , 470

U.S. at 18.

In any event, the constitutionally improper use of this agreement to vouch

for the truthfulness of Jackson’s testimony became unmistakable during the

State’s closing argument. During closing argument, the prosecutor said:

I want you to look at [the immunity agreement] very carefully. . . . If
we come up with any evidence showing he’s a principal in these
murders, this agreement is not worth the paper its written on, and
he’s charged. What this says to you is as of this good day not one
iota of evidence has come forth that Chris Jackson was involved in
these killings, the actual murders .

(Emphasis added). If this were just a comment on the trial evidence, the jury

could disregard it in light of its own knowledge of the evidence presented; but the

unqualified statement that no evidence “has come forth” would reasonably have

been understood by the jury to refer to all police investigation in the case.

Of course, unless specific constitutional guarantees are implicated, “a

prosecutor’s misconduct will require reversal of a state court conviction only

where the remark sufficiently infected the trial so as to make it fundamentally

unfair, and, therefore, a denial of due process.” Duckett v. Mullin , 306 F.3d 982,

988 (10 th Cir. 2002). Improper vouching for witnesses falls within this general

principle. See, e.g. , Moore v. Gibson , 195 F.3d 1152, 1173, 1175 (10 th Cir.

1999); Kappos v. Hanks , 54 F.3d 365, 367 (7 th Cir. 1995). Viewing the remark

quoted above and the vouching provisions of the immunity agreement within the

-52-
context of the entire proceedings, we cannot say that this, by itself, resulted in a

fundamentally unfair trial. Duckett , 306 F.3d at 989. However, we do consider

the misconduct and resultant prejudice substantial enough to play a role in our

assessment of cumulative error.

3. Cumulative Error

As explained earlier, we review petitioner’s claim of cumulative error de

novo, unconstrained by the deference limitations in § 2254(d) because the OCCA

did not conduct the appropriate cumulative error review. And, while cumulative

error is typically expressed as an aggregate of “all errors found to be harmless,”

Toles , 297 F.3d 972 (quotation omitted), we consider all the substantive errors

identified above, even though such errors were individually determined not to

warrant habeas relief because of a lack of sufficient prejudice under substantive

constitutional standards which incorporated prejudice components serving

essentially the same function as a harmless-error inquiry.

Cumulative-error analysis is “an extension of the harmless-error rule,” and

“is determined by conducting the same inquiry as for individual error.” United

States v. Rivera , 900 F.2d 1462, 1469, 1470 (10 th Cir. 1990); see Wood , 207 F.3d

at 1237. Thus, the appropriate legal standard for a cumulative-error claim

depends on the harmless-error standard that would apply to the constituent errors.

-53-
Rivera , 900 F.2d at 1470 n.6; see Wood , 207 F.3d 1237-38. The harmless-error

standard for individual habeas claims depends on the state courts’ disposition. If

the state courts did not address a harmless-error issue (or did so under the wrong

standard), we apply the standard generally adopted for habeas purposes in Brecht

v. Abrahamson , 507 U.S. 619, 637-38 (1993). Herrera v. Lemaster , 301 F.3d

1192, 1200 (10 th Cir. 2002) (en banc). Here, as we have noted, due in large part

to its imposition of inadequate procedural defaults, the OCCA did not address the

accumulated errors we have before us. Thus, consistent with Herrera and Rivera ,

we apply the Brecht standard, asking whether the many errors we have identified

during the guilt phase of this trial collectively “had substantial and injurious

effect or influence in determining the jury’s verdict.” Brecht , 507 U.S. at 638

(quotation omitted).

We have already explained in detail the nature and impact of the numerous

instances of ineffectiveness of trial counsel (and associated/alternative Brady

error) and prosecutorial misconduct with which we are concerned, and need not

repeat that discussion here. We emphasize, however, that these were not isolated,

insular errors scattered randomly throughout the proceedings. On the contrary,

these errors had an inherent synergistic effect which pertained to the two

absolutely critical witnesses for the State–Jackson and Jones. Defense counsel

unreasonably failed to challenge these vulnerable witnesses, while the prosecution

-54-
impermissibly bolstered and vouched for them. Moreover, the prosecution invoked

its own professional expertise and the official imprimatur of the State to influence

the jury’s assessment of the evidence. In such a weak case totally dependent on

the credibility of these two witnesses, we have no difficulty in concluding that

habeas relief is warranted on the basis of cumulative error.

C. PENALTY-PHASE ERRORS

1. Ineffective Assistance of Counsel

“The sentencing stage is the most critical phase of a death penalty case. Any

competent counsel knows the importance of thoroughly investigating and

presenting mitigating evidence.” Romano , 239 F.3d at 1180. Dereliction of this

duty is constitutionally impermissible. Battenfield v. Gibson , 236 F.3d 1215,

1228-29 (10 th Cir. 2001) (collecting cases). The district court found counsel’s

patently inadequate, strategically bereft, and ethically dubious penalty-phase effort

to be an overwhelming display of deficient performance. We agree for

substantially the reasons stated by the district court and recited earlier in this

opinion. We therefore turn to the question of prejudice, asking “whether there is a

reasonable probability that, absent [counsel’s] errors, the sentencer . . . would have

-55-
concluded that the balance of aggravating and mitigating circumstances did not

warrant death.” Strickland , 466 U.S. at 695.

In addressing penalty-phase prejudice, we evaluate the mitigation evidence

counsel failed to present relative to what was presented; the aggravating factors

found by the jury; and the overall strength of the State’s case. See Hale , 227 F.3d

at 1316 (following Stafford v. Saffle , 34 F.3d 1557, 1564 (10 th Cir. 1994)); Moore

v. Reynolds , 153 F.3d at 1098. The district court discussed at some length the

available mitigation evidence counsel failed to present. Petitioner’s mother

“would have told the jury about the circumstances surrounding Petitioner’s

premature birth [when she was fifteen years old and unmarried], his physical

problems as a child, his learning problems, his numerous moves during his

childhood, and the fact that Petitioner’s father was rarely around, did not support

the family, abused drugs, and abused her.” She also “would have told the jury that

she loved her son and that his life should be spared.” The district court noted

other witnesses with potentially significant mitigating information to offer, such as

family members who would have testified about petitioner’s positive personal

qualities and involvement with the children at his mother’s day care center, and

petitioner’s common-law wife who would have said he had acted like a father to

her young son. Finally, there was petitioner himself. He testified at the habeas

hearing that, had counsel advised him about the penalty phase and the nature of

-56-
mitigation, he would have expressed to the jury his remorse over the consequences

of the incident he participated in (while insisting on his innocence of the murder

charges) and would have asked the jury for mercy, particularly with his family in

mind.

“Mitigating evidence plays an overwhelmingly important role in the just

imposition of the death penalty.” Romano , 239 F.3d at 1180 (quotation omitted).

“The presentation of mitigation evidence affords an opportunity to humanize and

explain–to individualize a defendant outside the constraints of the normal rules of

evidence.” Mayes v. Gibson , 210 F.3d 1284, 1288 (10 th Cir.), cert. denied , 531

U.S. 1020 (2000)). “As a practical matter, the defendant probably has little or no

chance of avoiding the death sentence unless the defense counsel gives the jury

something to counter both the horror of the crime and the limited information the

prosecution has introduced about the defendant.” Romano , 239 F.3d at 1180

(quotation omitted). Here, as a result of counsel’s utter lack of preparation, the

jury heard only brief, personally remote, and fairly generic testimony from

petitioner’s pastor, who simply could not relate the individualized, humanizing

facts that other potential witnesses could have provided. The inescapable message

sent to the jury was that no one who really knew the young man they had found

guilty of murder–not parents, not family members, not friends–would take the

stand to explain why his life was still worth saving. And the young man never

-57-
spoke to them himself to express remorse or to otherwise suggest why he should

not be defined solely by the terrible act of which he stood convicted.

As for aggravating factors, the jury did find several which would have

weighed against any mitigation offered. However, the number of aggravators

over-represents their collective substance. The “heinous, atrocious or cruel”

aggravator associated with Sharon Paisley’s murder was clearly unsupported and

was struck by the OCCA on direct appeal for lack of evidence that petitioner had

inflicted any conscious suffering. There was sufficient evidence of the aggravator

with regard to Richard’s murder, but that was only indirectly attributable to

petitioner. Most other aggravators, other than the continuing threat of violence

aggravation, were of a relatively technical legal nature, for which the pertinent

evidence was not overwhelming nor indicative of much additional moral

egregiousness over and above the murders themselves.

Finally, as discussed in connection with our analysis of guilt-phase error, the

State’s case against petitioner was not particularly strong. Even on Jackson’s

testimony, petitioner’s conduct was reactive and precipitous rather than coldly

deliberative or sadistic, and, as noted above, his victim was not subjected to

conscious physical suffering before she died.

Weighing all of these considerations, we agree with the district court that,

had clearly available mitigating evidence been investigated and presented by

-58-
professionally competent counsel, there is a reasonable probability that a different

sentencing result would have obtained. Counsel’s conduct “so undermined the

proper functioning of the adversarial process that the [penalty phase of] trial

cannot be relied on as having produced a just result,” and petitioner’s consequent

sentence is constitutionally invalid. Strickland , 466 U.S. at 686.

2. Prosecutorial Misconduct

The district attorney engaged in a wide range of improper argument, such as

misstating facts, personally attacking petitioner and his counsel, assuring the jury

that aggravating circumstances would not have been charged unless appropriate,

and indicating his own personal opinion regarding the appropriateness of the death

penalty. Because of procedural bar complications, however, we limit our focus to

the following exhortation to the jury, which petitioner challenged on direct appeal:

Ladies and gentlemen, you the jury, [assistant district attorney] Mrs.
Smith and me, and the police, all fulfilled their roles in this case
because that’s our duty. . . . [T]his defendant . . . committed a crime
so vile, so vicious, so despicable, so unnecessary that the death
penalty is the only answer. Sure your job is hard, but you can do it.
Only you can do it. The police department has done all that it can do.
When I sit down, Mrs. Smith and I will have done all that we can do.
Only the 12 of you can finish the job by going up in that jury room
and bringing back a verdict of death. Unless you do that, the efforts
of the police department and my office have all been in vain.

We agree with the district court that “[t]his is an extremely improper

argument” because “it profoundly misleads the jury” about its role in the criminal

-59-
process “by suggesting that jurors are part of ‘the team’ of the prosecution and

police, rather than impartial arbiters between the State and the defendant.” The

Supreme Court has stressed repeatedly “that the jury must not be misled regarding

the role it plays in the sentencing decision.” Romano v. Oklahoma , 512 U.S. 1, 8

(1994) (following Caldwell v. Mississippi , 472 U.S. 320 (1985)); see also Young ,

470 U.S. at 18 (holding prosecutor’s effort “to exhort the jury ‘to do its job’ . . .

has no place in the administration of justice”).

We also agree with the district court that, in rejecting petitioner’s challenge

on direct appeal, the OCCA “did not adequately recognize the serious impropriety

of the district attorney’s argument, nor did the court adequately state or consider

Petitioner’s challenge to this argument.” The OCCA described the argument as

merely “acknowledging to the jury the difficulty of their task and asking them

seriously to consider the punishment options available.” Cargle , 909 P.2d at 824.

That argument would, of course, be perfectly acceptable, but it is clearly not the

argument quoted above. The OCCA, in effect, edited out the obvious,

impermissible thrust of the prosecution’s remarks and then approved of the

innocuous remainder. Such analysis is not a reasonable application of the

controlling precedent and, therefore, is not entitled to deference under § 2254(d).

Although that improper jury argument may very well have been so

prejudicial in itself as to render the penalty-phase proceedings fundamentally

-60-
unfair, we need not decide that issue because, when considered with the other

errors at the sentencing stage, we have no difficulty finding cumulative error.

3. Victim Impact Evidence

The district court also granted relief based on petitioner’s claim that the

nature and extent of victim impact evidence admitted during the penalty phase

went beyond the limits established in Payne v. Tennessee , 501 U.S. 808. While we

agree that the evidence exceeded the bounds delimited in Payne , we cannot affirm

the district court’s grant of relief in this regard, because, in our view, the OCCA’s

decision denying relief is entitled to deference under § 2254(d)(1).

The evidence in question included a lengthy and very emotional statement

read by Richard Paisley’s sister (Nancy Davis), similar though briefer testimony

from Sharon Paisley’s mother (Shirley Howell), and a number of photographs of

the victims while they were alive–one of Richard with his date of birth and date of

death written on the back. On petitioner’s direct appeal, the OCCA related the

witness testimony in great detail, see Cargle , 909 P.2d at 824-25 nn.12 & 13, and

discussed at length the concerns raised by both the testimony and the photographs,

id. at 829-30. We need not repeat that discussion here. We accept the OCCA’s

conclusions that “from the standpoint of admissibility of victim impact evidence,

much of it [was] irrelevant,” id. at 829; “the probative value of Ms. Davis’s

-61-
statement is substantially outweighed by its prejudicial effect,” id. at 830; and “it

was error to admit the photographs,” which were irrelevant and prejudicial, id.

After acknowledging these various instances of Payne error, the OCCA

concluded they were “harmless beyond a reasonable doubt.” Id. at 835 (noting

there was sufficient proof of several aggravating circumstances). That the OCCA

applied the federal Chapman standard for harmless error, which its language

clearly suggests, is confirmed by its citation to a prior decision which in turn

expressly relied on Chapman . Thus, in determining whether habeas relief is

warranted on the basis of Payne , “the proper question [under § 2254(d)] is whether

the [OCCA’s] application of the Chapman standard was objectively unreasonable.”

Saiz v. Burnett , 296 F.3d 1008, 1012 (10 th Cir. 2002).

This court has held improper victim impact evidence of similar–indeed more

poignant–character was insufficient to warrant habeas relief. See, e.g. ,

Willingham , 296 F.3d at 930-31; Hain v. Gibson , 287 F.3d 1224, 1239-40 (10 th

Cir. 2002), petition for cert. filed, (No. 02-6438) (U.S. Sept. 14, 2002). We note

that neither of the witnesses explicitly requested or recommended the death

penalty, so this case does not implicate the special concerns underlying the

categorical prohibition on such testimony. See Hain , 287 F.3d at 1238; Robison v.

Maynard , 829 F.2d 1501, 1504-05 (10 th Cir. 1987), overruled on other grounds ,

Romano , 239 F.3d at 1169. Under the circumstances, we cannot say the OCCA

-62-
was objectively unreasonable in holding that the admission of this improper victim

impact evidence was harmless.

Though Payne error thus will not support habeas relief on its own, it is still

relevant to our analysis of cumulative penalty-phase error. We agree with the

district court’s observation that the adverse effect of the victim impact evidence

becomes significant “when [it] is considered within the context of the meager

amount of mitigating evidence put on by Petitioner’s trial counsel, and the fact

that counsel’s constitutionally ineffective investigation and capital-stage

presentation failed to develop and put on a substantial amount of additional

mitigating evidence.”

4. Cumulative Error

We have already held that counsel’s dereliction of his professional duty to

develop and present mitigation evidence was, in itself, sufficiently egregious and

prejudicial to warrant habeas relief. Given the seriousness of the other errors

considered above, we also deem it appropriate to hold, alternatively, that

petitioner’s capital sentence is also fatally undermined on cumulative error

principles.

As was the case with guilt-phase cumulative error, this claim was exhausted

in state court, but the OCCA did not recognize and address the collective errors we

-63-
have before us here. Thus, we address the issue de novo under the Brecht

standard, asking whether the various errors we have identified collectively “had

substantial and injurious effect or influence in determining the jury’s [sentence].”

Brecht , 507 U.S. at 637 (quotation omitted).

That question is not difficult to answer. As the district court noted, the

effect of the improper victim impact evidence was highlighted by the conspicuous

absence of counterbalancing mitigation evidence from the defense. Amplifying

the resultant prejudice was the district attorney’s exhortation to the jury to do its

job as part of the prosecution team and impose the death sentence which was, in

the prosecutor’s opinion, the only appropriate response to petitioner’s crimes.

Finally, the apparent strength of the State’s case with respect to those crimes was

greatly inflated by petitioner’s counsel’s failure to challenge the State’s vulnerable

witnesses, and the prosecution’s impermissible vouching for them, during the guilt

phase. We conclude that the death sentences imposed in this case were

substantially influenced by cumulative error and, therefore, cannot stand.

III. EVIDENTIARY SUFFICIENCY/DOUBLE JEOPARDY ANALYSIS

Our decision to grant relief on the guilt and penalty-phase grounds cited

above will leave the State the opportunity to retry petitioner. We must therefore

-64-
consider challenges made by petitioner to the sufficiency of the evidence which, if

granted, would foreclose retrial under double jeopardy principles. See, e.g. ,

United States v. Smith , 82 F.3d 1564, 1567-68 (10 th Cir. 1996); United States v.

Massey , 687 F.2d 1348, 1354 (10 th Cir. 1982).

Petitioner argues that the evidence was insufficient to find him guilty of

aiding and abetting in Richard’s murder. The OCCA rejected this claim under the

controlling standard from Jackson v. Virginia , 443 U.S. 307, 319 (1979), i.e.,

“whether, after viewing the evidence in the light most favorable to the prosecution,

any rational trier of fact could have found the essential elements of the crime

beyond a reasonable doubt.” The district court held this disposition was entitled to

deference under § 2254(d), and we agree. The district court articulated the

following rationale for this conclusion, with which we concur:

The fundamental problem for Petitioner . . . is that even if he
had no intention of shooting anyone before he entered the Paisley
home and before Williams emerged from the bathroom, his actions in
response to the initial shots by Williams–namely, jumping up, going
across the room, pulling a gun out, and beginning to shoot Sharon
Paisley as her husband crawled across the floor–are enough to uphold
his conviction for Richard Paisley’s murder, under the Jackson
sufficiency-of-the-evidence test. A rational trier of fact could
conclude that . . . [he] made a conscious and deadly decision to
prevent Sharon Paisley from interfering with the murder of her
husband, by shooting her too.

While this basis for holding petitioner responsible for Williams’ unexpected attack

on Richard Paisley is inferential, it is, nonetheless, legally sufficient.

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 Petitioner also challenged the sufficiency of the evidence supporting the

aggravators underlying his sentence. We need not determine whether there was

sufficient evidence to support every aggravator; one will suffice. In Poland v.

Arizona , 476 U.S. 147 (1986), the Court rejected the argument that a sentencing

body’s failure to find a particular aggravating circumstance constitutes an acquittal

for purposes of double jeopardy on that aggravator in the event of retrial. Id. at

155-56. Only a finding “that no aggravating circumstance is present is an

‘acquittal’ barring a second death sentence proceeding.” Id. at 156 (emphasis

added); see Romano , 239 F.3d at 1178 (holding Poland analysis applies to

Oklahoma death penalty scheme).

The OCCA found sufficient evidence to support several aggravators as to

each murder count. Our agreement as to the continuing threat aggravator, which

applied to both, is enough to allay the double jeopardy concerns recognized in

Poland . 23

23
Because of our decision to grant habeas relief on the basis of ineffective
assistance of counsel and, alternatively, on the basis of cumulative error, we need
not address any of petitioner’s other claims.

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 IV. CONCLUSION

We AFFIRM the judgment of the district court invalidating petitioner’s

death sentences and REVERSE its judgment denying habeas relief as to

petitioner’s murder convictions. We therefore grant the writ both as to the

convictions and the death sentences, with the condition that the State may retry

petitioner within a reasonable time. If retrial is not commenced within such time,

the State may be subject to further federal proceedings to order petitioner’s

release. See Fisher , 282 F.3d at 1311.

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